01976690
09-23-1999
Martha W. Gallagher v. Department of the Army
01976690
September 23, 1999
Martha W. Gallagher, )
Appellant, )
)
v. ) Appeal No. 01976690
) Agency No. 9410079
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. �621 et seq. The final agency
decision was received by appellant on August 13, 1997. The appeal was
postmarked September 8, 1997. Accordingly, the appeal is timely (see
29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint as moot.
BACKGROUND
Appellant contacted an EEO counselor on September 17, 1993, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when on September 16, 1993 appellant's
supervisor treated her unfairly and harassed her about her title.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on November 16, 1993, appellant timely filed a formal
complaint of discrimination on the bases of race (Asian), color
(yellow), religion (Roman Catholic), national origin (China), sex
(female) and age (49). Appellant's complaint consists of sixteen (16)
pages of allegations of harassment and discrimination numbered 1.1
through 4.10. Appellant's alleges that she was subjected to a hostile
work environment in that agency officials in the Department of Foreign
Languages at West Point Military Academy engaged in practices and
behaviors that were discriminatory towards appellant.
On August 8, 1997, the agency issued its final decision dismissing
allegations 1.4, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.9.2,
and 4.10 of appellant's complaint as moot. The FAD determined that
the dismissed allegations alleged harassment and discrimination by a
particular agency official who has since retired from military service.
While the FAD was not specific or particularly detailed in its reasoning,
it concluded that these particular complaint allegations were moot and
dismissed them pursuant to 29 C.F.R. �1614.107(e).
ANALYSIS AND FINDINGS
As an initial matter, we find that appellant's complaint should be
treated as a single allegation of harassment. In that regard, we
determine that the incidents described by appellant in 1.1 through 4.10
are merely evidence of the harassment to which she alleges she has been
subjected by the agency.
EEOC Regulation 29 C.F.R. �1614.107(e) states that the agency shall
dismiss a complaint or a portion of a complaint that is moot or alleges
that a proposal to take a personnel action, or other preliminary step to
taking a personnel action, is discriminatory. Furthermore, a complaint
is moot if (1) it can be said with assurance that there is no reasonable
expectation that the violation will recur; and (2) interim relief or
events have completely eradicated the effects of the alleged violation.
Under such circumstances, no relief is available and thus there is no
need for a determination of the rights of the parties. See County of Los
Angeles v. Davis, 440 U.S. 625 (1979); Nagler v. Department of Education,
EEOC Request No. 05900375 (April 27, 1990).
The record in the instant case indicates that the alleged discriminating
official retired from military service in August of 1994. In that regard,
it can be said with assurance that there is no reasonable expectation of
recurrence of discrimination from that particular individual. However,
we do not find that interim events have completely eradicated the effects
of the alleged violations because appellant has requested as part of
her remedy, reasonable compensation for pain and suffering. As such,
this constitutes a request for compensatory damages.
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence that
he has incurred compensatory damages, and that the damages are related
to the alleged discrimination. Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (November 12, 1992), request to reopen denied,
EEOC Request No. 05930306 (February 1, 1993). Should appellant prevail on
this complaint, a possibility of an award of compensatory damages exists.
See Glover v. United States Postal Service, EEOC Appeal No. 01930696
(December 9, 1993). Because appellant requested compensatory damages,
the agency should have requested that appellant provide some objective
proof of the alleged damages incurred, as well as objective evidence
linking those damages to the adverse actions at issue. See Benton v.
Department of Defense, EEOC Appeal No. 01932422 (December 10, 1993).
We also find that appellant's dismissed complaint allegations are
part of appellant's general theory of harassment and discrimination.
Upon review of the record in this matter including appellant's complaint
allegations, the Commission is not persuaded that the retirement of
an alleged discriminatory official constitutes interim relief that has
completely eradicated the effects of the alleged violations.
CONCLUSION
The agency's decision to dismiss a portion of appellant's complaint is
REVERSED. We REMAND the dismissed allegations to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a
timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party WITHIN
TWENTY (20) CALENDAR DAYS of the date you receive the request to
reconsider. See 29 C.F.R. �1614.407.
All requests and arguments must bear proof of postmark and be submitted to
the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of
a legible postmark, the request to reconsider shall be deemed filed on
the date it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
September 23, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations